The Complaint
Constructing a Complaint
Pre-Answer Motions & Answer
Affirmative Defenses & Amended Pleadings
Joinder of Claims & Parties
The Pleadings
Zielinkski v. Philadelphia Piers, Inc.
IMPORTANCE: Elucidates need to write a well pleaded complaint;
leads to the development of a federal rule
FACTS: Complaint had alleged a certain fact which defendant,
knowing a third party was not their employee, denied. Plaintiff’s
attorney took this to mean the defendant was denying that they were
negligent, etc, not arguing the party was not their employee.
HOLDING: Same insurance company insured other company so the
court called this a wash in the interests of justice; statute of
limitations had run and throwing out complaint because of this would
bar recovery
RULE OF LAW: Leads to development of a new federal rule such that
if the right party actually knew that the wrong party was being sued
the plaintiff can amend the complaint to include the right defendant.
See Rule 12(c)(3).
Affirmative Defenses
Found in Rule 12(b)(1)-(7)
Ingraham v. United States
FACTS: Medical malpractice case in which the defendant forgot to
assert a statute limiting medical malpractice recoveries (an
affirmative defense).
HOLDING: Affirmative defense rejected because it was raised after
trial
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RULE OF LAW: So long as an affirmative defense is not raised at a
time that results in unfair surprise, technical compliance with Rule
8(c) is not a failure.
The 7th Amendment and the Right to a Jury Trial
See Pg. 62-64 Class Notes
The Foundation: Procedural Due Process
Procedural Due Process Defined (Wikipedia)
“Procedural due process is essentially based on the concept of
"fundamental fairness." As a bare minimum, it includes an
individual's right to be adequately notified of charges or proceedings
involving him, and the opportunity to be heard at these proceedings.
In criminal cases, it ensures that an accused person will not be
subjected to cruel and unusual punishment.”
14th Amendment to the Constitution
“Nor shall any state deprive any person of life, liberty, or property
without due process of law.”
Things to Remember
A state or a state actor must be involved for due process to be triggered
The right to a life, a liberty, or property must be contested
Liberty in this clause means freedom of movement, imprisonment, forced labor,
etc
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Rules for Service of Process: Rule 4
Goldberg v. Kelly
IMPORTANCE:
Supreme Court determines that once a person has been found entitled
to receive welfare benefits, these benefits qualify as property, and thus
their future denial or cessation is subject to due process
FACTS:
In reaction to this litigation, when a welfare benefitee’s benefits are
reduced, he is informed both in writing and in person by caseworker
that benefits are being revoked; benefitee has the option to appeal in
writing to a supervisor/higher up
RULE OF LAW:
Due Process requires
Notice
Hearing
Before a neutral decision maker
Does not need to be as formal as a court proceeding
Ability for defendant to give oral arguments
Ability to cross-examine witnesses against them
The right to retain counsel if so desired
Neutral decision maker must make decision on evidence given, as well as legal standard
regarding these cases
However, the state does not have to pay for an attorney in RE these cases
Once receiving something (i.e. benefits, licenses, etc) from government,
you don’t have a constitutional right to it originally, but once you have
received it, they cannot take it away without due process
NOTE: This case isn’t the rule of law today; Mathews is. Also,
remember that in this case the court was particularly swayed, when
requiring an oral hearing, that welfare recipients would likely not be
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effective in writing – i.e. this might not be true as well for other cases
with different facts.
Mathews v. Eldridge
IMPORTANCE:
This case & its rule of law creates the contemporary standard for
procedural due process
FACTS:
Client is told his welfare benefits are being revoked. None are given in
the interim while he tries to get them back.
RULE OF LAW:
Due Process generally requires consideration of three distinct factors:
The private interest that will be affected by the official action, i.e. length of
deprivation of benefits, or if benefits are someone’s sole source of income and
deprivation will essentially make them destitute
The risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute safeguards
(commonly referred to as the “risk of error”)
The Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail
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DISTINGUISHING FROM GOLDBERG
Potential injury to the private interest is less
Decision here turns not on subjective evidence but the relatively
“objective” evidence of doctor’s reports
Cost to the government may be high/more as compared to Goldberg,
but “financial cost alone is not a controlling weight in determining
whether due process requires a particular procedural safeguard.”
Hamdi v. Rumsfeld
IMPORTANCE:
Example of Mathews standard in application
FACTS:
Government has detained Hamdi, a U.S. citizen, suspicious that he is a
terrorist
RULE OF LAW (APPLICATION OF MATHEWS)
Private Interest
High
Hamdi is being deprived of his liberty via being detained by his government
Public Interest
High
Government has to make sure this country’s enemies are not returning back to the
battlefield to fight us
Risk of Error/Probable Value Add’l Procedures
High
Single person’s hearsay evidence has enabled Hamdi to be detained indefinitely
Lacking basic element of due process
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HOLDING:
Court finds the risk of error is unacceptably high, and that the process
afforded Hamdi is lacking basic elements of due process
Hamdi needs notice of charges, counsel and meaningful opportunity to contest
in front of a neutral decision maker
Court allows hearsay evidence so long as Hamdi has an ability to rebut
Fuentes v. Shevin
IMPORTANCE:
Established 3 prong test for when a temporary restraining order is
rightfully sought (See also Rule 65(b))
FACTS:
Creditor executed writ of Replevin against property upon which
payment was past due. Creditee never had an opportunity to rebut or
confront Creditor before property was simply taken one day.
RULE OF LAW:
3 part standard for when a situation is extraordinary enough to
postpone a hearing
Special need for prompt action
Strong government interest
Fact some judicial officer is assessing case before making determination
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If these three are present there is not due process violation
Another factor to consider is how long it will be until you get your
hearing
Rule 65
(b) Shows imprint of 14th amendment – a TRO can only last for 10
days
Greene
IMPORTANCE:
Establishes “reasonably calculated” test for service of process.
FACTS:
Client was evicted from her home, allegedly without knowing she was
evicted. Servers of process had followed statutory requirements for
posting notice, but it was known they were often taken down in this
complex.
RULE OF LAW:
“An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated under all circumstances to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.”
HOLDING:
The Kentucky statute used by the process servers did not past this test;
thus it did not pass constitutional muster
NOTE:
While Mathews test is about what process you get once you receive
notice, this test is utilized for actually giving notice
Rule 4: Summons
(e)
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Can give summons to person(s) who lives at home of defendant and who
is of suitable age (i.e. not a child or someone who looks like they
wouldn’t know what is going on)
If you don’t serve someone in hand you can leave it at their dwelling
house or usual place of abode with someone of suitable age and
discretion
Defendant has incentive to offer waiver of service – long time to
respond to summons
Khashoggi: The Rule 4 Interpretation Case
IMPORTANCE:
Qualifies Rule 4
FACTS:
Defendant was a Saudi oil magnate who owned an apartment in NYC. Was
served with process; process was given to his maid. Defendant was there at the
time, but his living situation was such that he had many residences throughout
the globe.
RULE OF LAW:
Dwelling house or usual place of abode in this case was the rule in this case;
taken from Rule 4
Most important fact in this case for the court was that the defendant was
actually there at the time service was rendered
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Private Rights of Action
Technically a given person does not have a right to bring a suit
under the constitution
42 U.S.C. 1983 affords a private right of action for
transgressions of your constitutionally afforded rights
Suit Prerequisites: The Three Rings
1-Subject Matter Jurisdiction
Definition: a court having the power to hear the particular type of
claim at issue; jurisdiction over the nature of the case and the type of
relief sought
Two types of federal subject matter jurisdiction
Federal question jurisdiction
Definition: Section 1331 of Title 28 U.S.C. “all civil actions arising under the
constitution, laws, or treaties of the Unites States”
Constitution allows for suits between states, between citizens of different states,
between citizens and aliens, cases involving foreign ministers and consuls,
admiralty and maritime cases, and cases arising under the federal constitution
and federal law; however, the actual jurisdiction of the courts is limited to what
is outlined by statute
Louisville & Nashville R.R. v. Mottley
Rule: when litigating a case in federal court for a plaintiff, the plaintiff’s original cause of
action (i.e. pleading), the suit itself, must arise under the Constitution. It is NOT sufficient
to anticipate counter-claims by the defense, and argue against those using the Constitution.
The very nature of the suit must arise under the Constitution.
A person does not necessarily have a de fact right to sue if a federal statute has
been violated. May be necessary for federal statute, if applicable, to have a
private right of action. See Heidi v. Vita-Men
Diversity of citizenship jurisdiction
Definition: Section 1332 of Title 28 U.S.C., federal courts can entertain civil
actions between citizens of different states “where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs.”
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In order for this amount not to be met there has to be a “legal certainty” the amount will
not be met
Persons are domiciled in states wherein they reside and wherein they intend to
remain indefinitely
Thus residence is a necessary, but not sufficient, condition for diversity purposes
Intent to remain is met so long as there is not a date or event, already decided on, which will
terminate domicile
For purposes of diversity actions corporations are citizens in their state of
incorporation as well as where their principal place of business is located
Case law has borne out that jurisdiction is set the day you file the lawsuit
Domicile for purposes of diversity is the product of two factors: presence and
intent to remain.
See Sheehan
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2-Personal Jurisdiction
Definition: a court’s power to bring a person into adjudicative
process; this is jurisdiction over an actual person instead of just their
property
Since Pennoyer v. Neff the Supreme Court has consistently held that
plaintiffs are not free to bring suit wherever they choose.
Ways to subject defendant to personal jurisdiction
Due process analysis on the basis of domicile in the state
In-state service of process (n/a to a corporation if transient only)
Consent to jurisdiction
Continuous or substantial in state contacts
Minimum contacts with the forum state that give rise to a particular
cause of action
Two requirements for asserting personal jurisdiction if it is not
consented to (minimum contacts test)
A statute or rule which establishes the court’s personal jurisdiction over
the parties
i.e. long arm statute
Some long arm statutes kick the question of personal jurisdiction straight to the next
requirement, phrasing “a court of this state may exercise personal jurisdiction on any basis
not inconsistent with the Constitution of this state or of the United States.”
Is the exercise of personal jurisdiction pursuant to the statute or rule
constitutional?
Modern due process test International Shoe Co. v. Washington
Test is elaborated on by World-Wide,Asahi, Burger-King
IMPORTANCE: Articulates minimum contacts test
RULE OF LAW: Personal jurisdiction can constitutionally be asserted if 1- the defendant
has “minimum contacts” with the forum state, 2-the claim sought to be asserted arises
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from or is related to these contacts, and 3-the maintenance of suit does not offend
“traditional notions of fair play and substantial justice.”
1-Meeting “minimum contacts”
2-Qualifying Minimum Contacts: Purposeful Availment
Definition: purposeful availment can be demonstrated by selling
products in the forum, advertising in the forum, cultivating customers
in the forum, or deliberately focusing on the forum, etc
Quality, not quantity, of contacts are important
Contacts that are “casual” or “isolated” will not do; defendant must
have sought some direct benefit from activities in the forum state &
must have purposefully availed themselves
Hanson v. Denckla
RULE OF LAW: The defendant must have “purposefully avail[ed] itself of the privilege of
conducting activities within the Forum State, thus invoking the benefits and protections of its
laws.”
World-Wide Volkswagen v. Woodson
RULE OF LAW: An entity has to have purposefully availed of thee opportunity to conduct
activities in the forum. Factors to be considered are: whether the defendant had done business
there, whether it ships or sells any products there, whether it has advertised there, whether it
has cultivated customers there, whether it has deliberately focused on the market, whether it
has an agent to receive process there, whether they perform any sales or services there,
whether they solicit business there through a salesperson, or whether they otherwise in any
way avail themselves of the privileges and benefits of Oklahoma law, and finally whether the
“defendant’s conduct and connection with the forum State are such that he could reasonably
anticipate being haled into court there.”
HOLDING: Supreme Court found no basis for assertion of personal jurisdiction against
manufacturer, importer, distributor, and seller (each separate party) of a faulty Volkswagen
bought in NY but involved in an accident in OK while passing through state.
DISSENTS:
Brennan: Argues that a car is given more value because of the interstate highway system;
therefore minimum contacts are met. Automobiles are meant to be moved around!
Marshall, et al.: “Petitioners are sellers of a product whose utility derives from its
mobility.” There is a “nationwide service network” that people depend on and that fuels
sales – what would you do if your car could only be serviced in the state or locality in
which you bought it?
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Hollingsworth & Vose
RULE OF LAW: Mere foreseeability is not enough to assert jurisdiction over Hollingsworth
3-Checking Minimum Contacts & Purposeful Availment: The
Reasonableness Factors
Asahi Metal Industry Co. v. Superior Court
FACTS: Supreme Court held against asserting personal jurisdiction against a
Japanese bolt manufacturer whose product found its way into another
company’s motorbike which was involved in an accident, allegedly due to faulty
product, in CA.
HOLDING: The court was severely fractured on this issue, but the opinion of
the court held that mere awareness one’s product would reach a forum through
the stream of commerce did not satisfy purposeful availment. A clear majority,
however, did find in any case assertion of jurisdiction would not be fair in this
case as it would not comport with traditional notions of fair play and substantial
justice.
RULE OF LAW: Qualifying “Fair Play and Substantial Justice”
Factors to consider once minimum contacts have been established, to check if assertion of
jurisdiction would comport with fair play and substantial justice:
Interest of the forum state in providing redress to its citizens
Interest of the plaintiff in obtain relief in a convenient forum
Interest of the states in enforcing their substantive law or policy and/or obtaining the
most efficient resolution of controversies
The extent of the inconvenience to the defendant if she is forced to defend away from
home
These can mitigate against the assertion of jurisdiction once minimum contacts has been
established, as in Asahi, where the court found minimum contacts, split on the issue of stream
of commerce vs. purposeful availment, but where a clear majority of the justices concluded that
to exercise jurisdiction would be unreasonable
COURT SPLITS:
O’Connor argues for a purposeful availment modification of minimum contacts test; i.e.
advertisement in the forum state
Brennan argues stream of commerce itself is sufficient
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Stevens said something too
Purposeful Availment & Intentional Torts
Keeton v. Hustler Magazine, Inc.
RULE OF LAW: A libel action can be properly brought where the claim arises
from the defendants contacts with the forum
HOLDING: A libel action can be properly brought in New Hampshire because
the claim arises out of the defendants contacts with the states – i.e. magazine
distributions
Calder v. Jones
RULE OF LAW: Commission of intentional tort means it is foreseeable that one
will be brought into court in the forum
HOLDING: Hinges on the plaintiff being allegedly libeled specifically and
purposefully
Subtypes of Personal Jurisdiction
Specific In Personam Jurisdiction
Jurisdiction over claims arising out of a single act, or contacts that are
continuous but limited
For the claims arising out of a single act, see Burger King Corp. v. Rudzewicz:
FACTS: Appellee and acquaintance took over control of a Burger King Franchise in
Drayton Plains, Michigan in 1979, committing themselves to some $1 million worth of
payments over the life of the 20 year commitment to Burger King Corp., headquartered in
Miami, Florida.
RULE OF LAW: Considerations/variables for fair play and substantial justice can
establish the reasonableness of personal jurisdiction’ considerations of fair play and
substantial justice can compensate for a weak presence or assertion of minimum contacts.
HOLDING: Choice of law clause, and that the agreement was for a 20 year franchise of
Burger King, mitigate against the defendant and for BK; thus jurisdiction is proper here
because the contract language (amongst many other factors in the contract which led the
defendant to have many contacts with FL).
DISSENT: Stevens & White are concerned about fairness when small entities are being
brought to a forum state of an entity which is far more powerful and economically able
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General In Personam Jurisdiction
Substantial or pervasive contacts
This means the defendant can be sued in the jurisdiction for any claim, even one
unrelated in activities in the jurisdiction
Appropriate for when the defendant’s activities are so substantial and
continuous that she would expect to be subject to suit there on any claim and
would suffer no inconvenience from defending there, i.e. a corporations
principal place of business or the place in which it is incorporated (if different)
General In Personam Jurisdiction & Corporations
A corporation is subject to general in personam jurisdiction in states in which it conducts
substantial and continuous business activities
Personal Jurisdiction Based on Acts Committed Outside the State
International Ins. Co. v. McGee
Court held an insurer offer sent to re-insure a policy holder in California was deliberate
enough action to subject insurer to personal jurisdiction in California
Calder v. Jones
The defendant, a Florida resident, was subject to personal jurisdiction for charges of
defamation when an article about a California actress was distributed in California
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Challenges to Personal Jurisdiction
Objection to jurisdiction must be made immediately or it is lost, i.e. preanswer motion, answer to complaint
Things to Remember: Personal Jurisdiction
Minimum contacts test applies to both individuals and corporations
Limitations on personal jurisdiction found in long-arm statutes are
distinct from the constitutional limit imposed by the minimum contacts
test, unless a state’s statute explicitly provides for jurisdiction to the
extent of the constitution
A defendant may have sufficient contacts with a state to support
minimum contacts there even though she did not act within the state
Minimum contacts focuses on the time the defendant acted, not on the
time of the lawsuit
Jurisdiction based on in state service is such that the defendant need not
have had any contact with the state at the time of the events giving rise
to the suit
3-Venue
Definition: The determination of which court within a court system
can entertain the case identified. Unlike personal jurisdiction, the
rules for this are all statutory.
Idea is to place separate constraints on the place of trial to protect
parties from inconvenient litigation.
Note whether you fulfill (a)(1) or (a)(2) it doesn’t matter; either will
suffice (you don’t need both) and neither is preferred
Also, like personal jurisdiction, venue is waivable
Under 28 U.S.C. 1391 (a), a cause of action founded only under diversity
of citizenship subject matter jurisdiction provides for proper venue in
(1) a judicial district where any defendant resides, if all defendants reside in the
same state,
16
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal jurisdiction at
the time the action is commenced, if there is no district in which the action may
be otherwise brought
If the basis is not based solely on diversity, suit may still be brought to
1391 (b)
(1) a judicial district where any defendant resides if all defendants reside in the
same State,
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated, or
(3) a judicial district in which any defendant may be found, if there is no district
in which the action may be otherwise brought
Subsection (1), identical under (a) and (b), provides
For the bringing of a suit in any district within a state where at least one
of the defendants reside, if all of the defendants reside in the same state
“Reside” seems to mean, for most jurisdictions, the same thing as
domicile, although this distinction is not settled
Subsection (2), identical under (a) and (b), provides
Practically authorizes venue in multiple districts
i.e. products liability actions could be brought in the district where the product
was manufactured and where the product caused injury
17
Subsections (3), different for (a) and (b), but both acting as fall-back
provisions
Three points
Venue is like personal jurisdiction; it is a personal privilege of the
defendant and can be waived
Specialized venue statutes cover many claims which would seem to be
covered by 1391 (a) and (b).
Courts often make distinct so-called local actions, such as claims related
to interests in land, and make these required to be heard in the district
where the land is located
Venue & Corporations
28 U.S.C. 1391(c)
Simply qualifies corporate residence for purposes of applying 1391 (a)(1) and
(b)(1)
“For purposes of venue under this chapter, a defendant that is a corporation
shall be deemed to reside in any judicial district in which it is subject to personal
jurisdiction at the time the action is commenced.”
Forum non conveniens
Asserted when the forum chosen by the plaintiff is substantially
inconvenient, and the correct forum is that of a different jurisdiction.
Piper Aircraft Co. v. Reyno (Pg. 869)
IMPORTANCE: Establishes the weighing of private and public interest factors
to determine the outcome of a forum non conveniens argument
RULE OF LAW: Weighing the private interest factors against the private
interest factors
Private Interest Factors
Relative ease of access to sources of proof
Availability/cost of witnesses
Possible view of premises
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Practical problems (time/money)
Public Interest Factors
Court congestions
Local interest in deciding local controversies
Interest in hearing diversity case in place whose law will govern
Avoid unnecessary problems with conflicts/foreign law
Unfairness of jury duty in unrelated forum
HOLDING: Court of Appeals erred in holding that plaintiffs may defeat a
motion to dismiss on the ground of forum non conveniens merely by showing
that the substantive law that would be applied in the alternative forum is less
favorable to the plaintiffs than that of the present forum. The District Court’s
decision to dismiss on forum non conveniens grounds is granted. The Court
says “American interest in this accident is simply not sufficient to justify the
enormous commitment of judicial time and resources that would inevitably be
required if the case were to be tried here.”
Wiwa (Supplement; Additional Information See pg. 31-32 in class notes)
FACTS: Allegedly Nigerian military authorities tortured, killed persons supplied
with weapons by and under the direction of Royal Dutch Shell Nigeria; suit
brought under the Alien Torts Claims Act (ATCA).
“The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States”
RULE OF LAW: See Piper above
HOLDING: District Court failed to articulate other factors against the granting
of the forum non conveniens argument, including, inter alia, that two of the
plaintiffs were U.S. citizens and thus are co-equal regarding the forum non
conveniens. matter, that Congress intends for the courts to hear these cases (see
ATCA and the Torture Victim Protection Act – TVPA).
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Defendant’s Second Guessing Forum Choice: Removal
Cases must be sent in tact if removed; parts of it alone cannot
be litigated in federal court – it all must be.
In order for a case to be removed to federal court, the claim has
to have been able to have been brought there originally
A defendant cannot remove to federal court if he is in state court
in his own domicile, unless the court would have original
jurisdiction over the matter (i.e. constitutional issue).
28 U.S.C. 1441: Rules of removal
(a)
Authorizes removal of state court actions “of which the district courts of
the United States have original jurisdiction.”
If the plaintiff could not have chosen to bring suit in federal court initially, the
defendant cannot remove it
Removal is only authorized “for the district and division embracing the
place where such action is pending [in the state court].”
(b)
A diversity case is only removable if “none of the parties in the interest
properly joined and served as defendants is a citizen of the State in
which such action is brought.”
Thus, if a plaintiff is sued in his home state, he cannot remove on the basis of
diversity.
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State Law in Federal Courts: The Erie Doctrine
State Supreme Courts are the final interpreters of matters of
state law; aside from declaring a state law unconstitutional or
declaring that it violates part of the Federal Code, the Supreme
Court of the U.S. has no interpretive rights over any state law
For additional help, see chart pg. 812
Era of the Federal Common Law: Swift v. Tyson
Federal courts were bound to follow only state constitutions,
statutes, and state judicial opinions interpreting statutes. Federal
courts were not bound by other state common law or precedent, but
were instead left to develop a body of substantive federal common
law
Fed. Rul. Civ. Pro. Respond: Erie R. Co. v. Tompkins
Federal rules govern procedural matters while state law covers
substantive issues.
Thus federal courts apply the state common law in the state in which
they sit (unless of course there is federal question subject matter
jurisdiction)
The Outcome Determinative Test: Guaranty Trust Co. v. York
“. . . in all cases where a federal court is exercising jurisdiction solely
because of the diversity of citizenship of the parties, the outcome of
the litigation in the federal court should be substantially the same, so
far as legal rules determine the outcome of a litigation, as it would be
if tried in a state court.”
In practice, this guts the F.R.C.P. as any rule might conceivably alter
the outcome of litigation
The Pendulum Swings Back A Bit: Byrd v. Blue Ridge Rural
Electrical Corporation
Courts should determine not only outcome as in York when deciding
state law matters, but also any countervailing federal policies that
arise from the federal court’s status as an independent judicial
system.
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Federal Statute Supremacy: Stewart Organization, Inc. v. Ricoh
A federal rule which governs the outcomes of the federal courts will
prevail over a contrary state law
If what happens in federal court is governed by a federal statute,
that’s what is going to be used
Rescuing the F.R.C.P.: Hanna v. Plumer
Part I: Keeping Erie and its progeny intact in this part, the Court
analyzed the case under a modified-outcome determinative test.
Whether a federal procedure is outcome determinative must be
viewed in light of the policies underlying Erie, to prevent forum
shopping and inequitable administration of the laws.
Part II: Linking passage of the F.R.C.P. with a federal statutory grant
to do so, the Court argues it has the power to “makes rules governing
the practice and pleading in [federal] courts, which in turn includes a
power to regulate matters which, though falling within the uncertain
area between substance and procedure, are rationally capable of
classification as either.” Thus this seems to give the Court, as the
dissent notices, broad constitutional authority to promulgate any rule
that is “arguably procedural.”
Thus, a federal rule of civil procedure, when on point, trumps a state
rule when the action is brought in federal court, unless the rule
modifies a substantial right you have, it goes against the Rules
Enabling Act, which allows rules to be made (28 U.S.C. 2072).
Erie doctrine summarized
A federal court, sitting in diversity, applies federal procedure but the
substantive law of the state in which it sits
In the absence of a F.R.C.P. and a conflict with state law, a court will
fall back upon the twin aims of Erie, discouraging forum shopping
and avoiding inequitable administration of the law; unless applying
the F.R.C.P./Federal practice will lead to either of these, they will
apply the federal rule
The difficult situation arises when there is no relevant federal
statute, but the federal courts still will act differently from the
states. Here you must then turn to the goals of Erie, which
22
include the equal protection of parties (i.e. inequitable
application of the law) and discouraging forum shopping.
If these factors are broached the federal law will do its own thing
Woods v. Holy Cross Hospital
FACTS: Plaintiff argues a rule is procedural, which is what you would
argue if you’re in federal court and you don’t want state law to apply
RULE OF LAW: If there is no federal law or statute on point, but a
federal practice not governed by the constitute or other statute or
rule nonetheless conflicts with a state law/practice, you’re going to
look at whether its substantive or procedural. From here, apply the
Erie doctrine. If they are true, the state law must be used. Otherwise
the Federal Court can apply its own law/practice/statute
Will it result in inequitable application of the law?
Will it effect the primary behavior of the people outside the courtroom?
Will it encourage forum shopping?
Sculpting the Lawsuit: The Rules of Joinder
Remember that authorization of joinder does not confer subject
matter jurisdiction for a court to hear the claim
Rule 20: Permissive Joinder of Parties
(a) Plaintiffs may sue together, or a plaintiff may sue multiple
defendants, if
They assert claims arising out of the same transaction or occurrence (or
series of transactions or occurrences), and
Their claims against the defendant or defendants will involve a common
question of law or fact
(b) Gives the court discretion to order separate trials to prevent
embarrassment or injustice against a party joined
Mosley
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RULE OF LAW: Joinder is permitted where a) there is a logical
relationship such that the amended party can be considered part of the
same transaction, and where b) there must be a common question of law
or fact.
Rule 13: Counterclaim and Crossclaim
Versus impleading
What you can do in a crossclaim is more expansive than what you can
do in an impleader
You can assert any claim that arises out of the transaction or
occurrence that is the subject matter of the claim (See 13(g) and 13(b)).
(a) Compulsory counterclaims are those which arise from the same
transaction or occurrence as the claim against the defendant, and
therefore must assert the claim or lose it in their pleading
(b) Permissive counterclaims are not compulsory and could be
brought up later if not asserted in the current action because they are
unrelated to the original claim
(f) If a party forgets to assert a counterclaim, the part can still assert
the counterclaim later if given leave of the court (regards permissive
counter-claims)
(g) Crossclaims are those asserted by one party against another coparty, and like permissive counterclaims, are optional
Rule 18: Joinder of Claims
Allows for the joining of claims
No common transaction or occurrence requirement
Like Rule 13, applies to any party seeking relief against another party,
i.e. a cross-claim, or a third-party claim
Once a party has asserted a related cross-claim as per 13(g), it may
then invoke Rule 18(a) to add totally unrelated claims as well
Rule 14: Joinder of Parties (Impleading)
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Impleader claims are treated like original suits for pleading, service,
and other purposes
Impleading does not affect the court’s jurisdiction over the original
claim; i.e. diversity cannot be broken here. There must, however, be
a basis for subject matter jurisdiction.
Venue is ignored for the third part defendant as well
Allows third party defendants to raise against the plaintiff any
defense the third party plaintiff has against the plaintiff (i.e. those
found in Rule 12)
Personal jurisdiction still requisite for the party that is
impleaded/third party defendant
Supplemental Jurisdiction
Is an attempt to solve the problem where a party or claim is
joined but over which there is no subject matter jurisdiction for
the court to hear it
28 U.S.C. 1367
(a) Paraphrased: essentially, allows the court to hear all claims that
arise out of the same nucleus of operative facts as the proper federal
claim, to include claims asserted by the plaintiff as well as those
asserted by other parties.
(b) Paraphrased: Limits supplemental jurisdiction if the claims made
against persons made parties under Rules 19, 20, 24, 19, and 24, if
exercising supplemental jurisdiction would be inconsistent with the
diversity requirement of section 1332 (does not apply if claim/party is
asserted/added by a defendant; only applies to plaintiffs)
(c) Paraphrased: Further limits supplemental jurisdiction according to
several discretionary factors of the court.
Joinder v. Jurisdiction: The Calculus
First, check if the claim or party can be properly joined under
one of the federal rules of joinder
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Next, check if the court would have subject matter jurisdiction
over the claim; if yes, it is not necessary to move on to the
supplemental jurisdiction question, and the court can hear the
claim
Finally, if the court does not have subject matter jurisdiction
over the claim or party outright, it can still be heard if it is a part
of the same nucleus of operative facts, provided diversity is not
broken by the joinder of the claim or party.
Amending the Pleadings: Rule 15
Idea is to reach a trial on the merits, not relegate litigation to a
trial on the pleadings
Amendments are subject to an increasing suspicion as the case
wears on; the earlier in the case an amendment is motioned for,
the greater the likelihood it will be granted
15(a)
For plaintiff, allows for one revision of the pleadings before they have
been answered, as a matter of course, i.e. without the need to obtain
court permission or permission of the opposing party
Also allows for a single revision by the defendant, but must be done
within 20 days of service of the initial answer
15(c): Generally allows for relation back if one of three factors
are met.
Moore v. Baker
HOLDING: Amendment in this case was not the same conduct,
transaction, or occurrence which was set forth in the original pleading.
Thus amendment is not proper.
RULE OF LAW: Unlike 15(a), which gives leave to amend “if justice so
requires,” 15(c) contains no such provision – thus “fairness and justice
have no role” in 15(c).
Bonerb v. Richard J. Caron Foundation
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HOLDING: Court finds a change from a negligence claim to a
negligence in counseling claim is simply a change in legal theory, but it
arises out of the same conduct set out in the original claim.
15(c)(2)
Plaintiff can amend the complaint even though a statute of limitations
has run if the claim asserted arises out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original
complaint, so long as the period for discovery has not run (as this
would prejudice the defendant).
Also, this rule will allow changing legal theory, but not the facts relied
upon, with due notice paid to whether the defendant had proper
notice
15(c)(3)
There are additional factors for relating back an amendment which
joins parties
Discovery
Discovery sought must be relevant
Work-Product privileged information is not required to be
released (Hickman v. Taylor) – See Rule 26(b)(3)
Basic Rules of Discovery: Rule 26
(a)(1) requires that you turn over or describe any document, and
release the information of any person, you will use to support your
claims or defenses.
(b)(2)(iii) lays out the factors which must be considered when seeking
to limit discovery under an argument the burden or expense of the
proposed discovery outweighs its likely benefit. The factors taking
into account: the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving
the issue.
Other factors to bring up include relevance from 26(b)(1) and undue
burden from 26(b)(2)(b)
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(b)(3) concerns work product privilege; all three must be met for the
work-product privilege to be maintained, and the party so requesting
must have “substantial need for materials” as well as be “unable
without undue hardship to obtain the substantial equivalent of the
materials by other means.”:
information has to be a document or a thing
prepared in preparation for litigation
prepared by the party, or the party’s representative
Discovery requests don’t have to be admissible evidence; the
standard is as long as it “appears reasonably calculated to lead to
the discovery of admissible evidence” then it is discoverable
Oral Depositions: Rule 30
A lawyer can instruct a deponent not to answer a question only under
three circumstances: to preserve a privilege, to enforce a courtordered limitation, or to present a motion to limit the deposition
under Rule 30(d)(4).
Usually taken after interrogatories and before trial
Now limited to 10 depositions, each of one 7 hour day, unless leave
of court is obtained
Can be done against anyone, party to the case or not
Interrogatories: Rule 33
Often best used for simple information, since they can be easily
narrowly construed by opposing party’s attorney
Unlike depositions, can be sent only to parties
25 question limit
Requests for Production of Documents: Rule 34
Can come along with interrogatories
Physical or Mental Examination: Rule 35
Requires court permission
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Request for Admission: Rule 36
Like interrogatories, but forces opposing party to admit or deny
certain facts, with the goal of narrowing the scope of issues/facts in
dispute at trial
Failure to Make Discovery/Cooperate: Rule 37 & Hickman
See Rule 37(b)(2) for options available to a court for failure to comply
with an order to compel
Hickman v. Taylor
FACTS: Attorney is seeking records from Taylor’s attorney regarding
the interviews of third parties, as well as requesting the impressions or
recollections of the attorney for Taylor if the interview with the third
party was not transcribed.
RULE OF LAW: Rule 26(b)
HOLDING: This case leads to the development of work-product
privilege
Jury Selection
Peremptory strikes cannot be made on the basis of race or
gender
Truncating or Ignoring the Trial: Summary & Other
Judgments
The Motions to Dismiss: Rule 12
Failure to raise one of four 12(b) defenses in the pre-answer motion
or in the answer, that of objection to personal jurisdiction, venue, the
form of process, or the method of service of process, are waived if
omitted (See Rule 12(h))
Court’s Calculus
Whether, if the plaintiff proves the allegations in the complaint, he will
have established a cause of action entitling him to some form of relief
from the court
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“It [must appear] beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” (Conley
v. Gibson)
Judgment as a Matter of Law: Rule 50
Federal standard: “The court should consider all of the evidence –
not just that evidence which supports the non-mover’s case – but in
the light and with all reasonable inferences most favorable to the
party opposed to the motion. If the facts and the inferences point so
strongly and overwhelmingly in favor of one party that the Court
believes that reasonable men could not arrive at a contrary verdict,
grant of the motion is proper. On the other hand, if there is
substantial evidence opposed to the motions, evidence of such
quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions, the
motions should be denied, and the case submitted to a jury.” (Boeing
Co. v. Shipman). See Reid v. San Pedro
Renewed motion for JMOL
Rule 50(b): must be filed within 10 days of verdict; must have been filed
initially before the verdict
Often the case is allowed to go to the jury when a JMOL is filed, so that
if the case is reversed on appeal, it does not have to be retried; thus
JMOL’s are often renewed after the jury has returned its verdict
For further see pg. 64/65 in Class Notes
Summary Judgment: Rule 56
Can only prevail so long as there is no material fact in dispute and
the moving party is entitled to judgment as a matter of law
In other words, demonstrate that other party has not put forward any
evidence from which a reasonable juror could draw a decision not
favorable to your party
Allegations in the pleadings cannot be used as evidence to
claim/defend a summary judgment motion
The denial of a summary judgment motion is not a final order and
cannot be directly appealed
30
See Adickes and Celotex pgs. 56/57 Class Notes.
Ordering a New Trial: Rule 59
Can order a new trial for errors in the trial process, or if the trial
process was fair but the result was wrong.
Here judge may consider credibility of witnesses
Relief from Judgment: Rule 60
Alternative Dispute Resolution (ADR) (See pg. 58 Class
Notes)
Arbitration
Is a process which involves an arbitrator who is an expert in the field;
counsel is allowed by not required. Discovery is not extensive and
formal rules do not apply. Both parties have to agree to this for it to
be true.
Mediation (Court-Mandatable)
Is a process in which a trained, neutral individual facilitates
discussion between the two parties designed to get them to reach
their own agreement on a settlement; decisions are not binding – the
idea is to try to get the parties to agree.
Early Neutral Evaluation (Court-Mandatable)
Is a process in which an attorney who knows the subject area of the
litigation gives his/her opinion about the merits of the case at an early
stage as a means of facilitating settlement
Summary Jury Trial (See Strandell pg. 61 Class Notes)
Process in which the attorneys summarize the testimony they expect
to present at trial before a panel of jurors selected from the jury pool,
after which the “jury” renders an advisory verdict, which can lead to
settlement by letting parties see how a jury might rule and giving
them a truncated version of their day in court
Mini-trial
31
Basically identical to a summary jury trial save for there is no jury,
only a neutral third party. Involves presentation of argument and a
summary of testimony (and may include summary testimony from the
witnesses themselves) before a neutral individual. If settlement does
not follow, the individual will make a ruling in the case to stimulate
further discussion.
28 U.S.C. 652 permits federal courts to mandate mediation and
early neutral evaluation, but not summary jury trials or mini
trials
This is probably because the first two occur early before huge
resources on discovery have been spent. Neither involves the
parties to reveal very much, if anything, about the merits of their
case, their case theory, or their litigation strategy.
The Ethics Of It All: Rule 11
Under current rule sanctions are not mandatory
Business Guides, Inc. v. Chromatic Communications
Enterprises
HOLDING: Magistrate had found attorney sanctionable under Rule 11
for not an initial error in a TRO, but for when the error continued to
show up in a revision. It was held however that the lawyer relied on a
sophisticated corporate client and thus he was not sanctionable
under Rule 11, but the company was.
Kraemer v. Grant County
IMPORTANCE: Elucidates test for sanctioning attorneys under Rule
11 (i.e. “reasonable under the circumstances).
FACTS: Alleged due process violation
RULE OF LAW: Facts to run when asking whether an attorney’s
actions are sanctionable under Rule 11 include: “Whether the signer
of the document had sufficient time for investigation; the extent to
which the attorney had to rely on his or her client for the factual
foundation underlying the pleading, motion, or other paper; whether
the case was accepted from another attorney; the complexity of the
facts and the attorney’s ability to do a sufficient pre-filing
32
investigation; and whether discovery would have been beneficial to
the development of the underlying facts.”
HOLDING: In order for a lawyer’s actions to be sanctionable under
Rule 11, they have to be “[un]reasonably under the circumstances.”
See Also Saltany v. Reagan, pg. 37 Class Notes
FACTS: Under old rules of a violation of Rule 11 is found sanctions
must be imposed
HOLDING: “Cooter makes clear that sanctions must be imposed once
a violation is found.”
DISSENT: Fails to see a Rule 11 violation, therefore will not impose
sanctions.
Committee v. Dennis Reimer, pg. 37 Class Notes
FACTS: Defendant had made an improper motion for summary
judgment based on lack of personal jurisdiction, which had been
waived when not asserted in the initial answer
HOLDING: Defendant thus clearly waived its defense [of lack of
personal jurisdiction] and could have no reasonable basis, based on
a reasonable inquiry into the Federal Rules and the case law, for its
motion for summary judgment.
The Real World of Appeals
See pg. 66-68 Class Notes
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